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Commonwealth v. Livingston

COMMONWEALTH OF MASSACHUSETTS APPEALS COURT
Apr 17, 2012
09-P-1230 (Mass. Apr. 17, 2012)

Opinion

09-P-1230

04-17-2012

COMMONWEALTH v. DELANO A. LIVINGSTON.


NOTICE: Decisions issued by the Appeals Court pursuant to its rule 1:28 are primarily addressed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, rule 1:28 decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 1:28, issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent.

MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

The defendant appeals from the denial of his motion for a new trial in which he sought to vacate his plea convictions for multiple counts of armed robbery, kidnapping, assault and battery by means of a dangerous weapon, confining or putting in fear a person for the purpose of stealing, possession of a firearm without a license, and use of a firearm during the commission of a felony; and one count each of receiving a firearm with a defaced serial number and possession of ammunition without a firearm identification card.

The defendant contends that the motion judge, who was also the plea judge, improperly denied his motion to vacate his plea and motion for new trial on the basis that his plea attorney failed to warn him of the possible immigration consequences of his guilty pleas, and that therefore his pleas were not knowing and voluntary. See Padilla v. Kentucky, 130 S. Ct. 1473, 1483 (2010) (criminal defense lawyer must advise a noncitizen client that pending criminal charges may carry a risk of adverse immigration consequences).

'A postsentence motion to withdraw a plea is treated as a motion for a new trial.' Commonwealth v. Conaghan, 433 Mass. 105, 106 (2000). See Commonwealth v. Furr, 454 Mass. 101, 106 (2009).

After review of the record, we conclude that the defendant correctly notes that the judge did not explicitly address his claim of ineffective assistance of counsel in her denial of his motion for new trial. While the judge, of course, had the right to reject as not credible the defendant's self-serving, conclusory affidavit, see Commonwealth v. Grant, 426 Mass. 667, 673 (1998), the order specifically indicates that the judge denied the motion based on her conclusion that her administration of the statutory alien warning and her finding that the defendant knowingly and voluntarily waived his rights at the time of the pleas was sufficient. From the face of the judge's order we are unable to determine whether the judge separately considered the defendant's contention that his plea counsel failed properly to advise him of the potential immigration consequences of his plea (and that he suffered prejudice as a result). See Commonwealth v. Clarke, 460 Mass. 30, 45-49 (2011).

We note that the judge did not have the benefit of Clarke at the time she issued her order.
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Accordingly, we are constrained to vacate the order and remand the case to allow the judge to address the defendant's ineffective assistance argument.

So ordered.

By the Court (Cohen, Green, & Graham, JJ.),


Summaries of

Commonwealth v. Livingston

COMMONWEALTH OF MASSACHUSETTS APPEALS COURT
Apr 17, 2012
09-P-1230 (Mass. Apr. 17, 2012)
Case details for

Commonwealth v. Livingston

Case Details

Full title:COMMONWEALTH v. DELANO A. LIVINGSTON.

Court:COMMONWEALTH OF MASSACHUSETTS APPEALS COURT

Date published: Apr 17, 2012

Citations

09-P-1230 (Mass. Apr. 17, 2012)